AGNEW & WOGAN AND ANOR
[2018] FamCA 277
•24 January 2018
FAMILY COURT OF AUSTRALIA
| AGNEW & WOGAN AND ANOR | [2018] FamCA 277 |
| FAMILY LAW – CHILDREN – Where the father has disengaged from proceedings – Where the father is incarcerated – Where it is appropriate for the matter to proceed undefended – Where the mother makes allegations of serious family violence – Where the mother alleges the child has mental health problems – Where the father has perpetrated family violence against the mother – Where the father poses an unacceptable risk of psychological harm to the child on the basis of exposing the child to family violence – Where the father’s parenting capacity is unknown – Where there are serious concerns about father’s ability to care for the child – Where it is not in the child’s best interests to have contact with the father – Orders made for the child to live with the mother and spend no time with the father – Orders made restraining the father from contacting or approaching the mother and child. |
| Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 69ZN Family Law Rules 2004 (Cth) r 16.07 |
| G & C [2006] FamCA 994 |
| APPLICANT: | Mr Agnew |
| RESPONDENT: | Ms Wogan |
SECOND RESPONDENT: | Ms Agnew |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta Family Law |
| FILE NUMBER: | PAC | 3478 | of | 2016 |
| DATE DELIVERED: | 24 January 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 24 January 2018 |
REPRESENTATION
| THE APPLICANT: | No appearance |
| SOLICITOR FOR THE RESPONDENT: | Family Focus Legal Pty Ltd |
| SOLICITOR FOR THE SECOND RESPONDENT: | Claremont Legal |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta Family Law |
Orders
The mother, Ms Wogan, shall have sole parental responsibility for the child B born on … 2014.
The child shall live with the mother.
The father, Mr Agnew shall not spend time with or communicate with the child.
The mother is restrained from permitting or causing the father to spend time with or communicate with the child.
The mother shall continue her engagement with C Group for as long as that service considers it to be necessary and shall accept and act upon any referrals provided by C Group.
The mother shall ensure that the child attends all appointments associated with his speech and psychological needs and shall follow all recommendations of his treaters.
Pursuant to s68B of the Family Law Act 1975, the father shall be and is hereby restrained from contacting or approaching, or attempting to contact or approach the mother or the child by any means whatsoever, including through any third party and the father is further restrained from:-
(a) Attending at, or being within 100 metres of any place of residence of the mother at any time;
(b) Attending at, or being within 100 metres of any school, pre-school or childcare facility attended by the child at any time.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Agnew & Wogan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3478 of 2016
| Mr Agnew |
Applicant
And
| Ms Wogan |
Respondent
And
Ms Agnew
Second Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns the long term parenting arrangements for three year old the child, the child of Mr Agnew (“the father”) and Ms Wogan (“the mother”). The paternal grandmother, Ms Agnew, previously sought orders in relation to the child but has discontinued her application and is no longer engaged in these proceedings.
The parents commenced a relationship in early 2012 and separated in February 2016. The father was incarcerated for a significant portion of the parties’ four year relationship.
The father initiated proceedings in the Federal Circuit Court of Australia in July 2016 when the mother ceased permitting the child spending time with him. The father sought orders that he and the mother equally share parental responsibility for the child, that the child live with the mother and spend alternate weekends, one night in the intervening week and half school holidays with him.
The mother’s position is that the father poses an unacceptable risk of harm to the child and she seeks orders that she have sole parental responsibility for the child and that the child live with her and have no contact with the father.
The matter was transferred to this Court in April 2017 at which time it was noted the father was incarcerated. He has not participated in these proceedings since November 2017 when his previous legal representative withdrew.
On 24 January 2018 orders were made on an undefended basis in the absence of the father for the mother to have sole parental responsibility for the child, for the child to live with her and spend no time with the father and for the father to be restrained from approaching or contacting the child. Further orders were made restraining the mother from permitting the father to spend time or communicate with the child, that the mother continue her engagement with C Group and that the mother ensure the child attend all appointments associated with the child’s speech and psychological needs.
I reserved my reasons for the orders made. These are those reasons.
Background
The parties commenced their relationship in early 2012 and began living together shortly afterwards.
The mother, who is 27, has a child from a previous relationship (“the older child”) who was eight at the time of the undefended hearing. That child lives with the mother’s parents, who share parental responsibility for the child with the mother and the older child’s father, and there are restraints on the child coming into contact with the father in these proceedings under parenting orders made in October 2012. The mother spends regular time with her older child.
The father, who is 28, also has a child from a previous relationship (“the father’s older child”) who was also eight at the time of the undefended hearing.
The mother claims due to the father’s activities and associates the family home and the paternal grandparents home have been raided by police on numerous occasions, including some when the child was present.
The mother alleges that her relationship with the father was characterised by controlling and coercive family violence.
In her affidavit filed 13 October 2016 the mother deposes to a particular incident of violence in August 2012 in which the father yelled at and slapped her because she had not finished washing his clothes.
The mother also deposes to another incident around this time precipitated by her older child contacting his father using the mother’s phone. The father became angry and accused the mother of cheating calling her “a fucking slut”. When the mother attempted to leave the home with her older child the father prevented them from leaving and hit the mother so hard she lost consciousness. This entire incident occurred in the presence of the mother’s older child.
The mother claims that the father used a taser on her in October 2012.
On the mother’s birthday while she was visiting her parents with her older child the father contacted her and demanded that she return to the home and pick him up. The mother refused and the father subsequently asked her to meet him at a local venue later that night.
When the mother met the father as requested she deposes he “threw” her in his car and refused to allow her to leave the car. He then threatened and assaulted her, including ripping off her underwear, pinching and hitting her and calling the maternal grandmother and telling the mother to say goodbye to her older child because she was going to die. The mother at one stage jumped out of the moving car and attempted to run to a police station in the area before the father caught her and put her back in the car and continued to assault her.
The mother deposes to this incident lasting nearly four hours before the car was stopped by police. The father was subsequently arrested and the mother was taken to hospital.
The father was convicted of intimidating the mother and multiple other counts of intimidation and use of an offensive weapon to commit a serious indictable offence in relation to other victims, including members of the mother’s family and friends. He was sentenced to two years and six months imprisonment with a non-parole period of 15 months.
The mother deposes to the father continuing to behave in a controlling manner while incarcerated, including insisting the mother have his name tattooed on numerous parts of her body.
The father was released from gaol in January 2014 and the parties’ recommenced living together.
The mother alleges the father continued to be violent and controlling and that she called the police on two occasions in September and October 2014.
The mother was also interviewed by an officer of the Department of Family and Community Services (“the Department”) in October 2014 to whom she disclosed that the father had been violent towards her and that she held fears for her life.
On 26 October 2014 the mother attended her older child’s soccer presentation. She deposes that the father refused to drive her but then followed her to the presentation in his car and called the mother numerous times during the presentation. Following the presentation the mother experienced severe pains and asked the father to pick her up. She claims that he kicked her and then left her on the side of the road. After the mother walked home, she realised she was in labour and the father drove her to the hospital. The mother was in significant distress but was told by the father to “stop being a weak cunt”.
The parties’ child, B (“the child”), was born shortly after the parents arrived at the hospital.
The mother deposes to being visited by a social worker from the Department a few days after the child was born for the purposes of accompanying the mother to a post-natal appointment at the hospital. The father was unhappy about the social worker’s presence and threatened the mother when she attended the appointment with the social worker.
The mother claims that throughout 2014 and 2015 the father continued to be physically and verbally abusive. She deposes to the father insisting on inspecting her underwear “to prove [she was] not cheating” after each of her visits to her parents’ house to see her older child. She also deposes to the father spraying capsicum spray in her face because “he thought it would be funny to watch [her] reaction” causing the mother significant pain.
The mother experienced a miscarriage in December 2015. She deposes to the father failing to assist her or display any sympathy for her during and following this event.
The mother alleges that in January 2016 she and the father purchased a pet rabbit for the child. Subsequently, the mother deposes to the father informing her that he and the child had given their greyhound “a live feed” and seeing the rabbit lying lifeless on the floor of the greyhound’s kennel. The mother was distressed that the child had witnessed the rabbit being fed to the greyhound.
The mother left the family home with the child on 11 February 2016 following further incidents of violence perpetrated against her by the father.
Following separation the child spent very little time with the father.
The mother facilitated the child spending time with the father on two occasions in April 2016. On the second of these occasions, the father assaulted the mother, took the child from her and attempted to leave with the child. The father eventually returned the child to the mother.
On 29 April 2016 the father called the mother about spending time with the child but the mother was opposed to this occurring. The mother alleges the father threatened her on the phone and then came to her home. She deposes to the father breaking into her home through the laundry door and grabbing her wrists causing bruising. The mother cooperated with the father and did not call the police as the father threatened her that “it would be the last thing [she] ever did”.
On 9 May 2016 the father again entered the mother’s home without her permission and threatened her with a knife. The father then took the child and the mother asked the maternal grandmother to call the police. The police attended the mother’s house and negotiated with the father until he returned the child to the mother. The mother provided a statement to the police about the incidents on 9 May 2016 and 29 April 2016 and the father was arrested. The mother deposes to an Apprehended Violence Order (“AVO”) being made against the father for her protection. The AVO was later amended so that the father was prohibited from making any contact with her.
The father has spent no time with the child since that time.
The father filed an Initiating Application seeking orders that he spend time with the child on 28 July 2016.
On 26 September 2016 the mother deposes to the father calling her five times over the course of the evening and threatening her, the child and the mother’s older child’s lives if she did not allow him to see the child. The mother called the police and the father was arrested for breach of the AVO and intimidation.
While on bail the father was again arrested on 10 October 2016 and charged with animal cruelty offences in relation to his greyhound training. The father was sentenced to eight months imprisonment in April 2017 for this offence.
The mother deposes to the father sending gifts to her and the child from gaol.
On 11 November 2016 all parties were represented at the interim hearing before a Judge of the Federal Circuit Court. Orders were made on that date for the child to live with the mother and for the mother to have sole parental responsibility for the child. Leave was given on that day to the paternal grandmother to intervene in the proceedings.
On 13 April 2017 the matter was transferred to this Court.
On 7 August 2017 the paternal grandmother filed an Application in the Case seeking that she and the paternal grandfather spend time with the child.
On 8 November 2017 the paternal grandmother’s application to spend time with the child was dismissed. On that date the father’s solicitor sought leave to withdraw from the proceedings. That leave was granted and the father has not participated in the proceedings since that date.
On 22 November 2017 the paternal grandmother filed a Notice of Discontinuance in the proceedings and is no longer seeking orders in relation to the child.
On 24 November 2017 there was no attendance by or on behalf of the father. Orders were made for the mother to file a consolidated affidavit of her evidence and for the Registrar to request the relevant court files in respect of the father’s criminal convictions. Further orders were made for the father to appear in person or via video link on the next occasion the matter was before the court and in the event he did not do so, the matter was to be determined in his absence.
On 24 January 2018 there was no appearance by or on behalf of the father and no arrangements had been made for him to appear in court via video or telephone link. The mother and the ICL sought that the Court proceed to deal with the matter to finality in the absence of the father.
Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules) provides that:
(1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.
Note: The court may dispense with compliance with a rule (see rule 1.12).
(2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.
Having regard to the considerations in respect of adjourning parenting proceedings, which were considered by the Full Court in Jarrah & Fadel[1], and to the principles for the conduct of child-related proceedings[2], in my view, it is in the best interests of the child for the proceedings to be finalised and dealt with in the absence of the father.
[1] [2014] FamCAFC 14
[2] Set out in s 69ZN of the Family Law Act 1975 (Cth).
In light of the matter proceeding on an undefended basis, the father’s material was not be read and final orders were made in his absence on 24 January 2018 at outlined in the Introduction of these Reasons.
The Child and Parents Issues Assessment
The mother, the child and the paternal grandmother attended on a Family Consultant for interviews as part of the Child Responsive Program on 15 August 2017. The father was unable to attend the interviews due to being incarcerated and the correctional centre was unable to facilitate a telephone interview between the Family Consultant and the father.
The child was too young to be meaningfully interviewed by the Family Consultant. He was observed to experience significant distress when the mother attempted to separate from him and it was determined that the child would remain with the maternal grandfather rather than childcare at the court for the duration of the mother’s interview with the Family Consultant.
Due to the child’s distress at separating from the mother and his limited contact with the paternal grandmother in the time leading up to the interviews it was determined that it would not be in the child’s best interests to be observed with the paternal grandmother.
Significant concerns were raised in the course of the interviews about the father’s alleged perpetration of family violence against the mother, at times in the presence of the child.
In addition to family violence, the mother also raised concerns about the child’s mental health and the attitude of the paternal grandmother towards the alleged violence perpetrated by the father against the mother and the child’s relationship with the father.
The Family Consultant in the Child and Parents Issues Assessment dated 16 August 2017 recommended that documents from the Department and NSW Police be obtained in relation to the mother’s allegations of violence and if the mother’s allegations were found to have substance it was recommended that the father attend a Men’s Behaviour Change Program. The Family Consultant also recommended that a Single Expert Report be obtained regarding “[the child’s] mental health and relationships and the capacity of each of his parents and paternal grandmother to understand and appropriately meet his needs” if the matter proceeded to final hearing.
It was suggested by the Family Consultant that the allegations made by the mother as to family violence be judicially determined prior to any attempts to re-establish the child’s relationship with his father or paternal grandmother. If determined that the child should have an ongoing relationship with the father and/or the paternal grandmother the Family Consultant recommended that a children’s contact centre be used to re-establish those relationships in a secure environment.
The Child Responsive Program, and the subsequently produced Child and Parents Issues Assessment, are not meant to be a comprehensive assessment like a Family or Single Expert Report is and as such, issues such as the allocation of parental responsibility are not dealt with in the Assessment.
The Family Consultant is a qualified social worker with a number of years of experience. Both the mother and the ICL accept the evidence of the Family Consultant and her Assessment was not challenged.
For these reasons I accept the evidence of the Family Consultant and attach some weight to her Assessment.
The Law & Discussion
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
Primary considerations: s 60CC(2)
The primary considerations (under s 60CC(2)) are:-
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.
Benefit to the children in having a meaningful relationship with both parents
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[3] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[4] and has also agreed with the reasoning of Bennett J in G & C[5].
[3] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[4] (2007) Fam LR 518
[5] [2006] FamCA 994
Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
The orders sought by the mother would not see the child develop a meaningful relationship with his father.
However, this consideration has not been interpreted as creating a presumption that children do receive a benefit from having a meaningful relationship with both parents.
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).
The Court continued at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The parents separated when the child was only 16 months old. The child spent very little time with the father following separation and has spent no time with the father since May 2016. It is clear that the child does not presently have a meaningful relationship with his father.
It is the mother’s contention that the child’s relationship with the father has been characterised by exposure to significant family violence perpetrated against her by the father. This contention will be dealt with later in these Reasons when considering the need to protect the child from harm.
The father is presently incarcerated and has disengaged from the proceedings. The father can be taken from his disengagement to accept that the child will not receive a benefit from having a meaningful relationship with him in the future.
In any event, the benefit to the child of having a meaningful relationship with both his parents is subservient to the second primary consideration being the need to protect the child from harm.
The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
The mother contends that the father has perpetrated serious family violence against her to which the child has been exposed. She contends that the child has been psychologically harmed from his exposure to family violence and is at unacceptable risk of being further psychologically and physically harmed if orders are made for him to spend time with the father.
According to documents obtained from various Local and District Courts the father has a lengthy criminal history involving multiple charges and convictions for violent offences, including charges of breaching an ADVO protecting a former partner and assault occasioning actual bodily harm.
The mother’s allegation in relation to the October 2012 incident is supported to some extent by documents obtained from Suburb D District Court. In those documents, including the Agreed Statement of Facts to which the father pleaded guilty and the psychological report concerning the father produced for the purposes of sentencing it is clear the father intimidated and threatened the mother and her family and friend during the incident. However, the mother’s account of the incident in her affidavit is far more serious and violent than the account apparently given to police or the psychologist who assessed the father.
There were no documents tendered in the proceedings from NSW Police, the Department or any medical practitioners as the assistance of these agencies was not sought by the mother until she separated from the father. However, many of the violent and controlling behaviours the mother deposes to the father engaging in are typical of the kind of coercive and controlling family violence contemplated in the Act.[6]
[6] Section 4AB of the Act defines family violence as “violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.”
In light of the father’s criminal history, the information contained in the Suburb D District Court file and information provided in the Child and Parents Issues Assessment by the mother and supported by the ICL as to the child’s mental health and the mother’s engagement with C Group, I accept the mother’s uncontradicted evidence that the father was violent and aggressive towards her on a number of occasions throughout the relationship and subsequent to separation in the presence of the child, causing the child to experience psychological harm.
Accordingly, I am satisfied that the father perpetrated family violence against the mother to which the child was exposed.
The father puts no evidence before the Court about his insight concerning his violent conduct or steps taken, if any, to address it. Further, the impact on the child if he were to be exposed to further family violence is likely to severe. In these circumstances, I am satisfied that there is an unacceptable risk that the father may expose the child to family violence which would cause further psychological harm to the child were the child to spend unsupervised time with the father.
Additional considerations: s 60CC(3)
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views of the child and factors underlying those views
Nature of the child’s relationship with each parent and other significant persons (including grandparents or other relatives)
The child is too young to have expressed any views to the Family Consultant. The Family Consultant was of the opinion that the child has a warm and established relationship with his mother. The child’s relationships with his father and paternal grandmother were not able to be assessed by the Family Consultant however, it is clear that the child does not have a meaningful relationship with any member of his paternal family.
In any event, as previously stated considerations the child’s relationships are secondary to the need to protect the child from the unacceptable risk of harm posed to him by the father.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the child and to spend time and/or communicate with the child
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
It is clear that the mother has been the child’s primary carer since birth. She has at all times fulfilled her obligation to maintain the child with limited support from the father.
The parents separated when the child was 16 months old and since separation the father has spent time with the child on two occasions. On each of these occasions the father was violent towards the mother. He has spent no time with the child since May 2016.
In disengaging from these proceedings the father can be taken to be forfeiting the opportunity to seek orders that may see him participate in long term decision making for the child and to spend time with the child in the future.
Likely effect of change in the child’s circumstances
Practical difficulty and expense involved in spending time with and communicating with the other parent
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child
Given the child currently lives with the mother and spends no time with the father or the paternal grandmother, the orders sought by the mother would not change the child’s circumstances. Nor would there be any practical difficulty or expense associated with the implementation of these orders.
Given the father’s present incarceration, any orders for the child to spend time with the father would be fraught with difficulty in terms of their practical implementation. Given his disengagement from these proceedings, orders being made as sought by the mother are likely to bring finality to the matter.
Capacity of each parent and any other person (including grandparent or other relative) to provide for the child’s needs including emotional and intellectual needs
Maturity, sex, lifestyle and background (including culture and traditions) of the child and either parent
Attitude to the child and responsibilities of parenthood demonstrated by each parent
The father’s perpetration of family violence against the mother and the child has been discussed at length earlier in these Reasons. His violence against the mother and the child demonstrates an abysmal attitude on his part to the responsibilities of parenthood.
Given the father’s incarceration and lack of engagement with these proceedings, his parenting capacity is untested. His history of violence and criminal behaviour gives rise to serious questions about his capacity to provide for the child’s needs were the child to spend time with him.
The capacity of the paternal grandmother, who is no longer a party to these proceedings have discontinued her application to spend time with the child, to appropriately care for the child is also in question. The family Consultant, in her Assessment dated 16 August 2017, raised concerns about the paternal grandmother’s minimisation of the father’s violent behaviour and her capacity to comply with any orders that the child not spend any time with the father.
There is no application before the court for the child to spend any time with the paternal grandmother but in any event, I would have grave concerns about the paternal grandmother’s ability to restrain herself from bringing the child into contact with the father were orders made for her to spend time with the child.
Family violence relating to the child or a member of the child’s family
Family violence has been dealt with at length earlier in these Reasons. The father poses an unacceptable risk of harm to the child on the basis that he is likely to engage in violent behaviour towards the child or in the presence of the child in the future were he to spend time with the child.
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
The presumption in favour of equal shared parental responsibility does not apply as the father has engaged in serious family violence.
Both the mother and the ICL seek that the mother have sole parental responsibility for the child.
The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the mother and the ICL must mean that the mother would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the father would have none of the duties, powers, responsibilities and authority with respect to the child.
Given the father has disengaged from proceedings, the only proposal before the court is for the mother to have sole parental responsibility for the child. In circumstances where the father has perpetrated family violence against the mother and the child, I am easily satisfied that it would be in the child’s best interest for the mother to have sole parental responsibility for him.
Conclusion
Having regard to all of the factors in relation to the best interests of the child and in light of the father’s violent behaviour and disengagement from these proceedings, it was appropriate to make orders as proposed by the ICL on 24 January 2018 as set out at the forefront of these Reasons.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 1 May 2018.
Legal Associate:
Date: 1 May 2018
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Injunction
-
Remedies
0